The Appellant was employed by the Respondent for less than a month; he resigned with immediate effect and brought a claim for unlawful deduction from his wages, also alleging that he had not been given proper payslips. The Appellant applied to add a new cause of action "for failure to provide payslips", but no application was made to add a claim for an uplift under section 38 of the Employment Act 2002 ("EA 2002"). The day before the hearing, the Appellant sent a schedule of loss to the ET, requesting an uplift under section 38 of the EA 2002 for failure to provide written particulars of employment, but this was not provided to the Respondent, who did not take part in the proceedings. The ET made an award for unlawful deduction from wages and a declaration that there had been a failure to provide payslips, but it made no reference to the section 38 uplift. The Appellant appealed, contending that the ET was bound in law to apply section 38, which states that an uplift "must" be applied where the legislative requirements are satisfied.

The EAT held that the ET was not bound to order a section 38 uplift where it was not asked to do so; if the uplift had been requested, the ET was required to bring the claim to the Respondent's attention so that it could defend the claim. In any event, the ET had wrongly calculated the Appellant's period of service by one day, and so the legislative requirements for the uplift were not satisfied.